What do Dobbs, the web designer case, the student loan case, and the affirmative action case have in common? In each case, a critical part of the coalition that makes up the Democratic Party (women, LGBTQ, young people, and black people) was given rights by the government, and in each case, the Court took them away at the behest of a right-wing plaintiff.
Coincidence? Hardly.
The outcome of the web designer case was never in doubt; the question was whether the Court would push the envelope in favor of future large Christian carve-outs in dicta. It didn’t; it stuck to the facts (the stipulation about the nature of the business in particular) and didn’t speculate about future cases. As a result, there is nothing in this decision that should get you whipped up. As to the future, we’ll just have to wait and see.
The student loan case is a different story. It was an unprincipled, partisan decision–and remember, I don’t support the program.
The majority opinion contains three parts. In the first, the Chief Justice finds that Missouri had standing, even though the record makes it perfectly clear that the state would suffer no concrete harm as a result of the loan forgiveness program. In the second, he digs hard to find a definition of “waiver” that is inconsistent with common usage. In the third, he makes reference to the vague, odious “major questions” doctrine and finds the program was inadequately authorized by Congress. Every one of the three parts of the decision is seriously flawed. In reality, what the Court is saying, and has said for the last few years, is that Democrats have no right to use the administrative system to make important policy changes that the GOP dislikes even if the literal language of the authorizing statute permits them. Will the Court use the same doctrine against a Republican administration in the future? Don’t hold your breath.
It is important that the impassioned dissent in this case was written by the usually diplomatic Justice Kagan. She is warning the majority that it is pushing too hard on partisan administrative law cases and losing its legitimacy in the process. Is Roberts listening? Only when it suits him.
America isn’t run by Ivy League grads–just ask Joe Biden, the proud graduate of the University of Delaware and Syracuse Law School–so today’s decision is more important symbolically than practically. You can reasonably assume, however, that many of the elite schools will respond by creating a system of admissions preferences using economic class as a proxy for race. If that proves to be true, and the new systems “work” as intended, what happens thereafter?
Do you really think the kind of people who brought today’s case are going to be satisfied with an ostensibly color-blind process that ends up with the same results? They are going to file more litigation and argue that it is the final product, not the intent, behind the system that has legal significance. In other words, they are going to make the same argument about results and motives that the right has consistently rejected in civil rights cases in other contexts.
What is the real basis for this decision? Two of the concurring opinions disagree. The Thomas concurrence attacks affirmative action in general as a horribly misguided attempt by elites to treat black people as a disadvantaged group, rather than discrete individuals; it argues that the Court has correctly disposed of decades of precedents permitting affirmative action under limited circumstances. The Kavanaugh concurrence takes the position that the Court is simply implementing its previous statement–one that, in my opinion, it had no basis or authority to make–that affirmative action must be limited by time, and time is up. Who is right here?
To be honest, I’m not sure, although the time limit clearly was important to the majority. One thing is certain, however; reparations will never survive this kind of scrutiny. As with Dobbs, the legal loss is a political victory for the left.
The Asian model of higher education revolves around a very rigorous exam. If, after years of intense study, you manage to pass it, you get into one of a few very upper level schools. This is your ticket to ride for the rest of your life. The prestige of your degree, the connections you make, and the skills you acquire at the school guarantee your success in life–probably in a secure and important government job.
Is it therefore any wonder that Asian-Americans are front and center in the battle against affirmative action in American university admissions? The problem for them, however, is that American schools and society do not work on the principles I have just described. There is no rigid hierarchy of universities, and real money and power in America aren’t associated with civil service jobs. It is perfectly possible to get ahead in this country without an Ivy League degree. In other words, Andrew Carnegie didn’t go to Harvard.
I expect the Supreme Court to put an end to affirmative action in higher education today or tomorrow. Afterwards, it will be easier for Asian-Americans to get into the school of their choice–say, Harvard or Stanford instead of USC or UCLA. So what? In the end, it won’t help them as much as they imagine.
The hypothetical interview concludes.
C: Up until now, I’ve been addressing issues that are directly tied to wokeness. Now I want to move on to some questions that have a less direct relationship to wokeness, and in some cases, probably none.
D: OK.
C: Let’s start with abortion. Are people who believe in abortion rights woke?
D: No. They’re just wrong.
C: What’s the difference?
D: Abortion rights advocates were around long before wokeness was such a big problem. They also represent a lot more votes. I can’t ignore that.
C: But you clearly don’t have a problem using the power of the state to oppress them. Do you support a federal abortion ban?
D: I’m proudly pro-life. As in Florida, if Congress sends me a ban, I’ll sign it.
C: But you won’t push for it?
D: Not in public, at least. It’s bad politics.
C: You won’t get a ban as long as the filibuster is in place. Will you push Mitch to ditch the filibuster?
D: Let me put it this way. Mitch has done a lot of good for the Republican Party, and I respect that. But his vision of the party is dead as a doornail. His version of the party just fed the base a rhetorical hamburger every now and then, and put its energy into cutting taxes. The base won’t tolerate that anymore; it wants the steak. If that means getting rid of the filibuster, so be it.
C: On immigration, you seem to have embraced Trump’s vision that we need to be as cruel as possible in order to deter the would-be immigrants.
D: This is another area in which Trump talked a lot, but delivered practically nothing. I’ll take his talk and put it into action.
C: So you accept his argument that cruelty is necessary here?
D: We have to maintain control of the borders. Whatever it takes.
C: Does it trouble you that your Catholic Church believes in humane treatment for immigrants?
D: Not really. Some religious beliefs work well in theory, but not in practice. The American people want to keep illegals out, so we’ll do whatever is necessary to get it done. The humane thing is for them to stay home.
C: But what about the impacts on business? Look at what happened to the UK after Brexit.
D: Woke capital doesn’t run this party any more. If we have some short term economic problems, so be it. America is for Americans–period.
C: Let’s move on to entitlements. Your first book recommended cutting them. Now you say no. Why?
D: Too many real Americans rely on them. They vote, too.
C: Biden wants to raise taxes on the wealthy to keep the programs solvent. Do you agree?
D: I’m not in favor of raising taxes. Taxes are theft, and Biden is a socialist.
C: Then what’s your plan for keeping the programs solvent?
D: The immediate crisis is wokeness, not entitlements. I’ll worry about them after I’m finished with the real task at hand.
C: So you have no plan?
D: I have to put all of my energy into fighting wokeness. Entitlements can wait.
C: Do you have a plan for a tax cut?
D: I cut taxes in Florida.
C: Because Biden gave you billions of dollars during the pandemic to make it possible.
D: If he wanted to give me the rope to hang him, so be it.
C: But do you have a plan for a federal tax cut?
D: At some point, I will, but fighting wokeness is the priority. I’m not giving any handouts to woke capital, that’s for sure.
C: You didn’t cut the budget in Florida. Would you be a budget cutter as president?
D: I would cut welfare programs and green energy subsidies. They waste too much money and piss off the base.
C: Anything else? If you take entitlements and defense off the table, there isn’t much left.
D: Not really. The base doesn’t care about the deficit. It does care about welfare and woke green energy.
C: Did you support the McCarthy budget deal?
D: No, because he didn’t cut welfare and green energy enough. He had the opportunity of a lifetime to turn this country around, and he blew it, just to keep a handful of rich businessmen happy.
C: Let’s move on to foreign policy. Many prominent members of your party are ardent admirers of Putin, because they see him as a fighter against wokeness. Do you agree with them?
D: I’m not a fool. I’m not Trump, or George W. Bush looking into Putin’s soul. The man is a KGB agent, and a killer. He should never have invaded Ukraine. That doesn’t mean we can’t do business with him on occasion.
C: Some members of your party want to appease Putin in Ukraine, and possibly elsewhere, in exchange for support against China. Do you agree with them?
D: I’m skeptical, but I’m willing to look into it. It would be worth trying.
C: Even if it effectively meant the end of NATO?
D: I’m in favor of exploring my options. That doesn’t necessarily mean I would accept any of them. It’s purely hypothetical at this point.
C: You’re an admirer of Netanyahu’s, are you not?
D: Absolutely! He’s like Churchill to me.
C: Do you see him as a warrior against Israeli wokeness?
D: Yes. He’s trying to stick it to the blue establishment on behalf of the real Israeli people. That’s my kind of guy.
C: If he asks you as president to bomb Iran, would you do it?
D: I would give it serious consideration. It would depend on the specific circumstances.
C: Do you have any issues with the Israeli government’s treatment of the Palestinians?
D: Not really. The Palestinians haven’t done anything to deserve their freedom. They’re just a bunch of terrorists.
C: Let’s conclude with China. I assume you think Biden has been soft on China.
D: Of course! He’s just another Jimmy Carter.
C: What would you do differently to contain China? Biden has strengthened our alliances in Asia and put new restrictions on tech exports. That doesn’t sound like being soft to me.
D: I would increase the defense budget, build more ships, and give more weapons to Taiwan. I would also explore flipping Putin, as I said before. He could be a big help with the Chinese.
C: How? The Chinese don’t rely on him for anything.
D: If they had to put more money into ground troops on their border, they would have less to spend on an invasion of Taiwan.
C: You would consider giving up Ukraine and splitting NATO for that?
D: Everything has to be on the table. China is like wokeness; it’s an existential threat.
C: Thank you for your time.
Most commentators, myself included, doubted the Supreme Court would rule on the merits in Moore. There were sound reasons for it to dismiss the case as moot. Having decided to make a point, however, the Court got it right. For once, it followed the clear mandate of history, common sense, and its own precedents and rejected the independent state legislature theory.
Justice Thomas made a reasonable argument in dissent that the case was moot. Logically, he should have stopped there. He even sort of admits that he should keep his mouth shut at that point. But he couldn’t help himself, so he told the world that he completely bought into the ISL theory. Why, other than having diarrhea of the mouth? Probably because he can see himself quoting himself as authority in some future case. He does that all the time.
The Court left the issue of the standard of Supreme Court review of state court decisions on elections for another day. It is likely that it will ultimately adopt something like an egregious error standard, based on the Kavanaugh concurrence. Since that conforms nicely with the federal due process standard, it makes sense, even though, with the current Court, it would probably only be used to help Republicans.
Most Americans who admire Putin do so because they view him as an ally in the universal war on wokeness. If you accept that argument, does that mean the head of the Wagner Group, best known for its incredibly brutal human wave attacks in Ukraine, is woke?
In the end, the Russian elites rallied around Putin, and the conflict fizzled. That’s no surprise; they owe their positions to him. But average people did nothing to support the government; the residents of Rostov actually cheered the Wagner fighters on their way out. Why should they lift a finger to help the regime? Putin has brought them nothing but economic troubles and a war they never requested. This was a battle purely for Putin’s puppets; it had nothing to do with them.
Things don’t exactly look great for the judo master at this point. The war is a massive failure. Finland is now part of NATO, with Sweden likely to follow. The Russian economy has survived, but is hardly thriving. Russia has lost influence to China in the rest of the former USSR; it is, in fact, practically a Chinese vassal state at this point. The most productive citizens of the country have fled. Russia’s only significant export will lose most of its value once electric cars dominate the market. Finally, and most importantly, Putin is 70, and has no obvious successor. It is unlikely his neo-feudal system will survive him without major changes and challenges.
Two people–both foreigners–could save his bacon. Xi might be able to give him weapons to win the war, although that seems highly unlikely at this point. His other potential savior, of course, is Donald Trump.
America, it’s up to you. A vote for Trump is nothing less than a vote for Putin and his corrupt, militaristic autocracy. Is that what you want?
Here’s a great law school exam question. The state of X has a new law that forbids trans people from getting certain kinds of medical treatment that have virtually unanimous support from the medical community. There are, however, a few eccentric doctors who support the state law.
Lawyers for some trans people in the state file a lawsuit based on alleged equal protection and substantive due process violations. Most cases based on these theories fail, because they are subject to an extremely deferential standard of review. This case, however, raises some fascinating questions:
We’re going to be seeing cases like this on a routine basis in the very near future. They will make fascinating reading for constitutional lawyers like me.
A column in today’s NYT indicated that an extraordinary percentage of the members of Gen Z identify themselves as LGBTQ. You don’t have to be part of the hard right to find that alarming. Common sense tells us that a substantial portion of the increase is due to favorable portrayals of LGBTQ people on TV, in movies, and on the internet; calling yourself LGBTQ has become fashionable as a result. If you’re, say, Ron DeSantis, what can you do about this?
You would start, of course, by excluding LGBTQ people and ideas from the public sphere to the maximum extent possible. The right is already starting to do that. Regulating public activity, however, would not be enough. You could only put the genie back in the bottle with Chinese levels of censorship of TV, the movies, and the internet for many years, if not decades. Nothing less than that has any hope of success.
Leaving aside the obvious First Amendment issues with this approach, would you really want to live in a country with that kind of censorship? Didn’t think so.
Prigozhin is going to Belarus, presumably in the belief he is safe there. Does he really think Putin will live and let live? Does he honestly believe that he can’t be harmed in a country that is run by Putin’s lackey?
He’s going to wind up in prison or dead–probably the latter. If there is an antidote to novichok, I would be investing in it immediately.
No dictator can afford to look vulnerable; if the fear he inspires dissipates, he can lose power in the blink of an eye. In light of that, how will Putin respond to yesterday’s events? You can expect him to escalate in Ukraine and to unleash a new wave of repression at home to send the message that he’s still the boss.
But what of the Chinese? Prigozhin is yet another warning that they have made a bad investment. Do they start inching away from someone they have reason to believe is a loser, or do they double down and hope for the best even though they know Putin can’t last forever, even under the best case scenario? Given Xi’s behavior to date, the latter is the better bet.
We know that Donald Trump is a huge fan of Vladimir Putin, so we could hardly be surprised when Trump took Putin’s side in the battle with Prigozhin. He didn’t stop there, however. He went on to argue that Xi wants largely vacant Russian land for China, and that Biden takes his orders from Xi; hence, presumably, American opposition to Putin in Ukraine.
This raises two important questions. First, can Trump actually be crazy enough to believe something that is completely at odds with the undisputed facts? Second, how can the GOP electorate support a candidate who is that obviously unhinged?
It’s Dobbs day! How has the picture changed over the past year?
The first phase, which focused on state legislatures and a few referenda, is essentially over. There were a few surprises, but by and large we got what we expected; the red states have enacted strict new legislation, and the blue states have taken steps to further protect abortion rights. So what’s next?
The red team will do its best to impose its will on the blue states. This will manifest itself in three ways: